Sunday, January 15, 2012

Credible Fear

TO DIE IN FLORENCE - with writer’s notes
This story is based on a client’s case file and the relevant facts of this story are true. The characters are fictionalized. The immigration judge ordered our client removed from the United States in the summer of 2011 and the Board of Immigration Appeals affirmed the decision at the end of September 2011. The case is currently pending before the US Court of Appeals for the 9th circuit and if the court follows its own precedent decisions, the client will be deported to El Salvador. It may take two years before the Court renders a decision and making the story into a movie may influence the court and may alter the outcome of the decision, hence the ending of this story.

The movie starts in the future in a blood orange color.
Possibly it is 2014.

The prologue starts with a 28-year old young man escorted by two ICE agents from a plane on a tarmac in sunny, hot and sweaty conditions. The ICE agents take of the handcuffs when they hand him over to local authorities. The two agents wish the young man well. The immigration authorities escort the young man of the tarmac to the gates. The airport has a sign in big red letters saying “El Salvador”.

The young man leaves the airport in a taxi to the city. The taxi takes him to the center of San Salvador. The young man gets out of the taxi. He seems unsure of where to go, when a dark blue sedan catches up with him and a semi-automatic machine gun appears through the rear window. Several shots are fired and the young man falls to the ground, his body riddled with bullets. People are screaming, panic takes hold of the square and the car takes of with screeching tires.

Spring of 2011. The colors are blue and gray.
We’re in a court room in the Florence Detention Center. A young female lawyer whose parents immigrated from Iran in 1979 finishes describing the scene we just watched. The young man who we just saw being murdered is sitting next to here in a kaki jump suit. He is 24-years old. The lawyer starts her arguments and tells the judge that her client’s fear is that if he is deported from the United States, that he will be immediately killed upon arrival.

This is where the movie starts.

We learn that the young man is called Raul Lopez. His testimony tells the story of child whose family refused to succumb to the terrors of the gangs, in particular MS-13. The movie goes back and forth between the current scenes in the court room and the chronological telling of the story, starting when Raul was 8-years old, playing soccer in the streets, when he saw his uncle been murdered by three men. We hear and see the story of his older brother being initiated by MS-13 and disappearing when he was 17-years old to be never heard from again. We witness his mother’s attempts to protect him from the gangs and his first refusal to join when he was 14-years old. The violence surrounding the child’s family is enormous. When he was 11-years old, his father was killed in broad daylight on Sunday morning after church. Houses are set on fire, family parties are disrupted by killings and mourners are threatened after funerals. No one is safe from the terror and government officials either are complicit or unable to do anything.

In cross examination, the government attorney downplays the violence and actually mocks the young man’s experience. The government attorney paints a picture of an emerging democracy in El Salvador and cooperation by law enforcement with America’s war on drugs. He hammers on the fact that young man’s mother through a friend forged documents to smuggle the young man to the United States with a fake passport and visa when he was 16-years old. This was eight years ago. He confronts Raul that he has been working in the United States illegally as a construction worker and he possibly still has ties to MS-13. He points out that the young man never asked for assistance, but had chosen to live under the radar and only just asked for asylum, because he was arrested in a raid. He thinks the story is rather convenient and we have literally heard this sob story a thousand times before. Raul admits having worked illegally, but says that he never hurt anyone and that he is scared of the gangs.

Raul’s attorney introduces evidence that two of his cousins were recently deported from the United States and murdered in El Salvador within two weeks. The judge examines the death certificates and the movie takes us to El Salvador one year ago when these two men were deported and murdered.

The story evolves, but during closing arguments, the government attorney recites current case law that refusal to enter a gang and the resulting gang terror, especially from MS-13 in El Salvador is not a ground for asylum in this country. The highest courts have decided that gang-related terror is not grounds for asylum, since asylum is for persecuted individuals living in fear of their government, not because their family are criminals and are afraid of their own criminal organization. It would be like granting the Corleone family asylum from Italy. The young female attorney tries to argue that if her client is deported he might face the same fate as his cousins, but she has to admit that it is difficult to know what will happen in the future. She says she hopes that the judge will think twice before sending this man to a certain death.

The immigration judge is sympathetic with the young man’s plight, but rules that because the claim was filed more than one year after he entered the United States, the young man is not eligible for asylum. He would be eligible for withholding of removal, but this standard is higher. In the end the judge in a convoluted decision agrees that the circuits have ruled that a person who refused to join a gang is not protected and he orders the young man deported to El Salvador. He says he is very sorry and wishes Raul well. Raul cries and is taken away. His attorney nervously tries to compose herself. She sees her client being shot when he returns to El Salvador.

The young lawyer, Niousha Parsi, has a conversation with her parents during dinner who tell her that she could make a much better living as a corporate attorney, or be successful just like her brother. They don’t understand her relationship with this older Jewish lawyer she works for. They end up yelling at each other and she storms out.

The next morning Niousha discusses the case with her boss. She doesn’t think they should appeal, because they have no chance and the client doesn’t have any money. Her boss is an older Jewish lawyer who fights against everything and everybody.  He has a great sense of humor, but he is so cynical, sour and disillusioned with the system, the practice, his clients, other attorneys and life in general, that he has been outcast by everyone, including his own wife and children. He tells the young lawyer that they do need to make money to pay the next month rent, but in this case, she should appeal if she truly believes that her client will be killed if she loses. She thinks about what to do. She is certain they will lose on appeal and recites the case law to her boss: The 9th circuit ruled in Ramos v. Holder that in the matter of S-E-G the Board recently determined that young Salvadoran men who have resisted recruitment into the MS-13 do not constitute a particular social group and that the refusal to join the MS-13 does not amount to a political opinion. The 9th circuit agrees and there’s no hope.

December 2010. The colors are Arizona red.
We see 22-year old Raul working at a construction site in South Phoenix when the Sheriff raids the place. He tries to hide, but he does get caught and is being dragged away as a big criminal. He is represented in criminal court by a disinterested public defender where he is convicted for identity theft, because he had a fake driver’s license and social security number.

It may be true that they’ll lose, Murray Goldman, the old lawyer says, but since everything is against her client, she has nothing to lose. She has to fight if she believes what she just told him. This is why people become lawyers, he says. She merely shakes her head.

June 1996. The colors are bright and hot.
The 8-year old Raul is playing soccer in the streets in El Salvador. His uncle is walking towards him pushing a fruit card. Three men approach him. The child stops playing and watches. He hears yelling, three shots and his uncle falls to the ground.

September 2011. The colors are beige and brown.
Three judges sit in the conference room of the Board of Immigration Appeals. The female judge disagrees with the two men. She can’t believe that they’re sending this young man home. She was recently appointed to the Board and the two other judges make her understand that she can’t let her emotions get the best of her. He doesn’t see any errors in the judge’s decision and agrees with the judge who wrote the opinion that they need to affirm the order of removal.

End of September 2011. Outside the colors are bright and hot, but inside the colors are blue, bland and gray.
The glass separates the lawyer from her client. The little booth feels claustrophobic and Niousha is holding back her tears when she tells him that they lost the appeal. Raul begs her to keep fighting and that he rather dies in Florence than returning to El Salvador. He says that he doesn’t mind being here more time, since he has been here already almost one year. He says he trusts her and that God will guide her.

Spring 1999. The colors are green, yellow and sky blue.
Raul is 11-years old. It is Sunday morning, the family is leaving Church. His father moves ahead of the family. His mother, his two sisters and younger brother try to catch up. From the other side of the streets, a group of men approach the young man’s father. They shout at him. It’s difficult to see and understand what is going on, but then a knife appears. His father falls to the ground. We hear two shots being fired. Raul’s mother starts screaming and runs towards her husband. The group of men opens up, she kneels by her husband. She wails. The street is silent. The young man’s father dies.

Spring 2011.
Back in the court room, the Judge gives Raul’s mother a tissue. She testifies that after the murder of her husband she fled El Salvador and left her two sons and two daughters with family members. She tells the Judge that she was granted “temporary protected status” by the United States and that’s how she has been able to live here. The government attorney wants to know why she felt that it was safe to leave her children behind. She tries to explain that she had no choice, but the government attorney fails to understand.

October 2011.
At the office, boxes are stacked shoulder high. Murray, carrying a box of files, has a fit. God has nothing to do with this, he says, and if he did then he is an absolute asshole. He says he can’t understand why people always think God can help them. It will be Niousha who can help and hopefully they’ll find a reasonable ear at the circuit court of appeals, but he doubts it. He tells that if God was on their side, they didn’t have to move out of their office.

December 2002.
Raul is now 14-years old. He is pressured in a ceremonial meeting to join the gang. They sit in a circle in a remote area. He is presented with a gun. The older gang members slap the young man on the head, egg him on. They want him to kill his cousin and tell him that if he does, he will be protected by the gang. Raul trembles and gets up. He aims the gun on gang members. They laugh in his face and challenge him to pull the trigger. He can’t and throws the gun on the ground. One of the gang members picks up the gun and puts it against the young man’s head. He pulls the trigger. There are no bullets in the gun.

October 2011. Colors are light brown, dark brown and white.
Niousha’s brother enters the small storage room, where the lawyers have set up shop in his office space. Boxes are everywhere. He hopes that they don’t have to stay long. He wouldn’t want to have to work in an office without windows. His sister lashes out and tells him that he is spoiled and arrogant. He calls her ungrateful. Murray feels out of place and asks why the internet is not working – they need to file the appeal today.

April/May 2003. The colors are yellow, blue, green and red.
Raul, now 15-years old, gets on a bus in San Salvador. He ducks behind a seat and holds on to his backpack. The bus drives through Guatemala. It stops at a few checkpoints, but no one asks him anything. He gets off the bus close to the border with Mexico where he is being greeted by someone, who says he is a friend. They cross into Mexico at night on foot. The “friend” gives the young man an address in Oaxaca.  Raul continues to travel, now by train and his journey ends close to Chihuahua.

November 2012. The colors are white marble, dark oak brown and gray.
The hotel room in San Francisco is empty, when Niousha enters from the bathroom. She appears very nervous. She takes deep breaths, looks in the mirror and runs back to the bathroom.

The overwhelming marble of the structure and the enormous hardwood benches in courtroom number 3 of the 9th Circuit are imposing. The three Judges sit high on the bench. In front of the Judges sit the clerks and the court reporter. The young lawyer feels that she stands a mile away and she feels as small as an ant.

Judge Bybee asks why this case is so special that the Court should overturn its own precedent decisions. “The United States of America cannot grant asylum to a person who doesn’t qualify according to the definition, even when the circumstances appear to be very sympathetic.” The other Judge admonishes the young lawyer that she is wasting the Court’s time unless she can prove that this case is very different from any other case that has come before this Court. He says that he reviewed the entire record and found no errors in the Judge’s findings. He feels that this young lawyer has not made any legal argument and is merely stalling the inevitable.

October 2012.
Niousha meets with Raul in Florence. Niousha informs her client that she’ll appear at the 9th Circuit next month. Raul has visibly aged. He is now 27-years old. He has been sitting in Florence for almost 3 years. He appears exhausted. He says that he believes in Niousha. Whatever happens, it is God’s will.

November 2012.
Niousha stares at the three Judges, she stares at her table. She tries to compose herself. She apologizes, but then gets up and continues.

May 2006.
Raul is 18-years old. He enters the football stadium in cap and gown with three hundred other students. His mother is sitting in the stands. The high school band is playing a medley of favorite fight songs. The English teacher who calls of the names then calls for Raul Lopez. Raul walks towards his principal who hands him his diploma. Raul grins from ear to ear. His mother closes her eyes for a moment and lets out a prayer.

November 2012.
Niousha tells the Judges that Raul wants to be an engineer. He was an above average student who could have received a scholarship, but won’t be able to attend college, unless this Court decides that he shouldn’t be sent to a certain death. Niousha pulls herself together, ends with stating that she doesn’t have a legal argument, but that her case is about what is doing right and humane. She attacks the Judges and says “if this Court can’t see that, then any legal argument is irrelevant, since our system is first build on justice and fairness and secondly about applying the law. If the first hurdle can’t be taken, then the second argument is useless.” The Judges are not amused.

January 2014.
The first scene repeats itself: Raul gets out of the taxi. He seems unsure of where to go, when a dark blue sedan catches up with him and a semi-automatic machine gun appears through the rear window. Several shots are fired and Raul falls to the ground, his body riddled with bullets. People are screaming, panic takes hold of the square and the car takes of with screeching tires.

January 2014.
Murray and Niousha are unpacking boxes again. Niousha is crying. They’re on the 27th floor of a high rise building and they look out over Phoenix. Murray is happy. He gives Niousha a big hug. She doesn’t want to say goodbye, but he says it’s OK and leaves. She is left behind between the boxes in her new office She looks out the window when her new boss, a lady in her mid-forties, walks in and asks her how she’s doing.